The Volokh Conspiracy
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Judge Dismisses Lawsuit Against Universal Studios Based on Employee's Use of "OK" Gesture
From an order by Judge John Kralik of the L.A. Superior Court in McGee v. Universal City Studios, LLC, decided April 30 but just posted on Westlaw:
Plaintiffs … allege that they were at Defendant Universal City Studios, LLC's theme park Universal Studios Hollywood. They allege that on July 18, 2021, Defendant "Beetlejuice Doe," an employee of Defendant Universal City Studios, LLC, acting in the course and scope of employment, was dressed as the fictional Beetlejuice character from the 1988 film and was greeting visitors and posing for photographs. Plaintiffs allege that they stopped to take a picture with Defendant Beetlejuice Doe. Marisol McGee (a Latin-American woman) posed with Defendant Beetlejuice Doe, while John McGee (an African-American man) took the photo and Dylan McGee (a mixed-race minor boy) watched. When taking the picture, they allege that Defendant Beetlejuice Doe displayed a racist, offensive "White Power" hand gesture.
The Complaint alleges the gesture was this (known to most of us, when the lines and words are absent, as the "OK" gesture):
Plaintiff sued for, among other things, a violation of California's law banning various kinds of discrimination in public accommodation (the Unruh Act), but the court granted Universal's motion to dismiss:
… Plaintiffs allege that Defendants' perception of Plaintiffs' race, ethnicity, color, ancestry, and/or national origin was a substantial motivating reason for Defendants' conduct and that Defendants' acts/omissions were the legal cause of Plaintiffs' damages…. [They] allege that the hand gesture is a symbol for "White Power" and provide facts and exhibits from various organizations and news outlets to support that it is not merely the "okay" symbol but a symbol of "White Supremacy."
Plaintiffs allege that Defendants should have known that, for several years prior to the incident, the subject hand gesture became a universally known "White Power" symbol that was used to target and express hatred towards certain populations based on race, ethnicity, color, and ancestry, and that the "White Power" hand gesture is considered intolerable in a civilized community. Plaintiffs allege that UCS is a subsidiary of Comcast Corporation, which is one of the news outlets that reported about the symbol, such that it should be aware of these reports. Plaintiffs allege that UCS had actual notice of the "White Power" symbol because UCS had been sued at least twice before for using the "White Power" hand gesture in 2019 through its "Felonious Gru" character and had issued a public statement and apology that it did not want its guests to experience what the families experienced and that it would take steps to make sure it did not happen again….
Plaintiffs have alleged facts regarding the intent with which numerous other persons have used an "white power," or "okay" hand gesture. Yet, as confirmed by oral argument they have not alleged any additional facts to explain why the Defendant Beetlejuice Doe character in question may have used this gesture or why UCS allegedly authorized him to do so.
Plaintiffs are inferring a specific meaning to what their own exhibit characterizes as "an obvious and ancient gesture that has arisen in many cultures over the years with different meanings." Indeed, this is the exhibit that contains the picture that Plaintiffs incorporate into their complaint to explain the newer meaning of the gesture. Although Plaintiffs previously objected to the Court considering this exhibit, they have now attached it into their complaint. This exhibit reads in part:
The overwhelming usage of the "okay" hand gesture today is still its traditional purpose as a gesture signifying assent or approval. As a result, someone who uses the symbol cannot be assumed to be using the symbol in either a trolling or, especially, white supremacist context unless other contextual evidence exists to support the contention. Since 2017, many people have been falsely accused of being racist or white supremacist for using the "okay" gesture in its traditional and innocuous sense.
Likewise, Exhibit B states that "it's impossible to tell if the sign is sincerely sinister shorthand for white supremacy or merely a kind of douchey magic spell that triggers libs with a wiggle of the fingers." This exhibit asserts that use of the symbol is "kinda racist," but concludes that assessment amounts to "wildly guessing." While noting that some racist groups have used it as a symbol of white power, it continues to be used in sign languages, yoga, and as a signal that all is well. This analysis conflicts with that of Plaintiffs' lawyers in the [Complaint] itself, but it is the [Complaint] that places it before the Court. Thus, the [Complaint] concedes that the gesture itself is ambiguous. Given the ambiguous nature of the signal, improper intent cannot be presumed from the mere gesture itself.
With this amendment, it is apparent that the mere use of this gesture is the issue here. Plaintiffs have not alleged any new facts or context regarding the incident itself to support the contention that intentional racial discrimination or harassment occurred. Even the photograph of the allegedly offensive gesture is not attached for the purpose of providing such context. As such, the Court's analysis remains the same. Whether some or all internet pundits contend that this gesture is offensive or innocent, or both, or neither, is not the question. There are no facts regarding this incident that demonstrate that the Defendant Beetlejuice Doe character or UCS intended racial discrimination beyond a gesture that the [Complaint] now concedes is ambiguous.
The test as to whether an offense to a protected class has occurred must be objective, not subjective as Plaintiffs demand. Entertainment and literature often contain material that is offensive to some persons. For example, compare the majority opinion in United States v. One Book Entitled Ulysses (2d Cir. 1934) 72 F.2d 705, which viewed James Joyce's Ulysses as "a work of symmetry and excellent craftsmanship of a sort." with the dissent, which viewed parts of the book as "too indecent to add as a footnote" to the opinion.
The Court knows of no case where the observation of subjectively offensive material at an amusement park amounts to intentional discrimination or a denial of services, and indeed the Court is unwilling to extend the Unruh Act that far, as it would open the Courts to an infinite number of such cases. For example, some patrons might easily allege an offense to their religion based on the mere appearance of the intentionally ugly and undead Beetlejuice character. An entire "world" of the park is devoted to attracting young people to witchcraft, which also might offend traditional religious values.
In this case, the regulation of speech is based on shifting and subjective perceptions of meaning rather than a clear prohibition. To allow the Unruh Act to be used as a speech code based on internet pundits' evolving perceptions of proper usage would make it vulnerable to First Amendment challenge. It also seems a trivialization of the original aims of a proud statute, which has been a fundamental part of California's civic and legal system since it was enacted in 1959 and thus has required generations of equal treatment under the law. The California Legislature is certainly capable of going beyond the Unruh Act to pass laws that prohibit certain forms of speech and conduct in business establishments, but it must do so clearly and directly, thereby allowing the legislation to be clearly understood so that it can be obeyed or challenged constitutionally before citizens are subjected to damages, fines, and attorney's fees….
The court likewise threw out plaintiffs' claims for intentional infliction of emotional distress and for negligence.
